United States v. Senesouk ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
10-4-2004
USA v. Senesouk
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-1213
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 04-1213
____________
UNITED STATES OF AMERICA
v.
PHITSAMY SENESOUK
a/k/a
"Peace Man"
Phitsamy Senesouk,
Appellant
____________
Appeal from the United States District Court
For the Middle District of Pennsylvania
D.C. No.: 02-cr-00103-1
District Judge: Honorable A. Richard Caputo
____________
Submitted Under Third Circuit LAR 34.1(a) September 20, 2004
Before: McKEE, ROSENN, and WEIS, Circuit Judges
(Filed: October 4, 2004)
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OPINION OF THE COURT
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ROSENN, Circuit Judge.
Phitsamy Senesouk is a legal resident alien. As a result of his guilty plea for
cocaine distribution, Senesouk is subject to deportation at the conclusion of his
incarceration. At his sentencing proceeding, Senesouk asked the District Court to depart
downward from the Guidelines based on, inter alia, the notion that his deportability
exacerbated his sentence. Senesouk asserted that his actual sentence would be lengthened
because of the inevitable incarceration that results from awaiting deportation. Although
the District Court appreciated Senesouk’s position and even “found some logic to it,” the
District Court denied Senesouk’s motion for a downward departure, stating that
Senesouk’s deportability did not “support[] a downward departure in this case.”
Senesouk contends that the basis for the District Court’s decision is unclear. In
his view, the District Court’s decision could be based on either: 1) an erroneous
interpretation of the law (i.e., that the District Court believed it lacked the authority under
U.S.S.G. § 5K2.0 1 to grant a downward departure on the basis of Senesouk’s status as a
deportable alien); or 2) the District Court believed it had discretion, but chose not to
exercise it. Because of this ambiguity, Senesouk requests that this court reverse and
remand for resentencing with instructions that it is appropriate to consider his
deportability as a basis for a downward departure.
To the extent Senesouk alleges that the District Court committed legal error when
imposing his sentence, this court has jurisdiction under 18 U.S.C. § 3742. See United
1
U.S.S.G. § 5K2.0 provides in relevant part, “[t]he sentencing court may depart from
the applicable guideline range if . . . the court finds . . . that there exists an aggravating or
mitigating circumstance.”
2
States v. Georgiadis, 933 F.2d 1219, 1222 (3d Cir. 1991). However, to the extent this
appeal attacks the District Court’s exercise of discretion in refusing to depart downward
from the Guidelines, it must be dismissed for lack of appellate jurisdiction. See United
States v. Denardi, 892 F.2d 269, 272 (3d Cir. 1989).
Senesouk pled guilty to two counts of distributing cocaine in violation of 21
U.S.C. § 841(a)(1). As a result of receiving two prior felony drug convictions, Senesouk
qualified as a “career offender” under U.S.S.G. § 4B1.1. This resulted in a Guidelines
range of 151-188 months in prison and a criminal history category designation of VI. On
July 30, 2003, Senesouk filed a motion for downward departure from the Guidelines
based on three separate grounds: 1) Senesouk’s criminal history category of VI
“significantly over-represented the seriousness of his prior criminal record”; 2) Senesouk
had “trouble assimilating himself into the American culture”; and 3) Senesouk’s status as
a potentially deportable alien “will result in unusual or exceptional hardship in his
conditions of confinement.” Senesouk formally withdrew his motion based on
assimilation grounds at the January 15, 2004 sentencing hearing. At the same hearing, the
District Court denied Senesouk’s remaining motions for downward departure. Senesouk
timely appealed.
A review of the record shows that the District Court believed it had the authority
to depart, but exercised its discretion to the contrary. Although the District Court did not
expressly state that it knew that it had the authority to depart, this court has held that
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“such recitals are not mandatory.” United States v. Mummert, 34 F.3d 201, 206 (3d Cir.
1994) (citing Georgiadis, 933 F.2d at 1222). The District Court’s language and its actions
at the sentencing hearing establish that the District Court believed that it had the authority
to take Senesouk’s deportability into account, but made a discretionary decision not to
exercise it.
At the sentencing hearing, the District Court asked Senesouk to articulate exactly
what it was about his deportation that merited a downward departure, and listened to him
argue the merits. The District Court then allowed the government to state its position.
The District Court responded to Senesouk’s argument by stating, “while I understand
your position, and there is some logic to it . . . I don’t see it as supporting a downward
departure in this case.” Use of the phrase “in this case” suggests that the District Court
believed that deportation may constitute sufficient grounds for a downward departure in
certain cases, although not in the present one. That is, the District Court’s choice of
words suggests a willingness to take deportation into consideration in situations where it
finds that deportation sufficiently exacerbates the defendant’s condition.
Although this court has never expressly stated that deportability is a valid factor to
be taken into consideration, see, e.g., United States v. Marin-Castaneda, 134 F.3d 551,
554 (3d Cir. 1998) (choosing not to address the appropriateness of deportation as a
grounds for downward departure because the defendant did not argue that deportability
exacerbated his sentence), the District Court’s comments and actions at the sentencing
4
hearing are inconsistent with the notion that it believed it was precluded from taking
deportability into consideration. Because the District Court seemed to indicate that a
downward departure for deportation is permissible under some circumstances, we are
persuaded that the District Court’s refusal to depart on this ground was discretionary.
Where the District Court’s ruling is based on an exercise of discretion, the appellate court
lacks jurisdiction. United States v. Stevens, 223 F.3d 239, 247 (3d Cir. 2000). United
States v. Farouil, 124 F.3d 838 (7th Cir. 1997), cited by appellant, is distinguished on its
facts, and adds little to the analysis.
Accordingly, the appeal is dismissed for want of appellate jurisdiction.
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